Mullen v. Goord

267 A.D.2d 1040, 700 N.Y.S.2d 782, 1999 N.Y. App. Div. LEXIS 13817

Opinion

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner was found guilty following a Tier III hearing of violating inmate rules 114.10 (7 NYCRR 270.2 [B] [15] [i] [smuggling]) and 180.10 (7 NYCRR 270.2 [B] [26] [i] [violating facility visiting procedures]). Although the proof is entirely circumstantial, the determination of the Hearing Officer is supported by substantial evidence (see, Matter of Fereira v Coombe, 239 AD2d 905). It is well established that a Hearing Officer may rely on confidential information (see, Matter of Abdur-Raheem v Mann, 85 NY2d 113, 119; Matter of Vogelsang v Coombe, 105 AD2d 913, affd 66 NY2d 835). By refusing to attend the last day of the hearing, petitioner waived notification that confidential information was received that day (see, Matter of Tifer v Coughlin, 214 AD2d 1036, 1037; see also, Matter of Cowart v Pico, 213 AD2d 853, lv denied 85 NY2d 812; cf., Matter of Freeman v Coughlin, 138 AD2d 824). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Pine, J. P., Lawton, Wisner, Hurlbutt and Balio, JJ.